Thursday, June 03, 2021

Why Do States with the Least to Fear Sometimes Take the Most Aggressive Measures? Backlash, Anticipatory Backlash, and "Sidelash" in a Federalist System

 by Michael C. Dorf

Quick! In what three states do you think educators are most likely to want to teach critical race theory (CRT) to impressionable young people? If you guessed Arkansas, Idaho, and Oklahoma, you win. Those were the first three states to pass laws banning or defunding CRT. Honorable mention if you guessed Tennessee, Texas, Georgia, or South Carolina, in which anti-CRT bills are pending. Each day brings news that another Republican-dominated state legislature has passed an anti-CRT bill, even though it's pretty obvious that one is more likely to see widespread teaching of CRT in blue states than in red ones. What's going on?

For the most part, the answer is simple partisan politics in an era when cultural issues have been nationalized. CRT is the latest culture-war issue that Republican elected officials are using to appeal to the white grievance mentality of their base, while Democrats either actively agree with CRT or see it as not so different from a traditional civil rights perspective as to warrant a campaign of unconstitutional censorship. We see anti-CRT bills passed in red states because Republicans have legislative majorities in those states; Republicans in blue states might introduce such bills, but they won't pass and thus won't garner much attention.

So most of the answer is simply tribal politics. But I want to suggest that there's another phenomenon going on as well. I'm even going to coin a term for it: sidelash.

Readers will be familiar with the idea of backlash. A movement makes initial gains but then as its leaders become overconfident or even perhaps simply as the general public begin to take notice, forces of reaction develop. In the literature of social movements we see talk of movements sparking counter-movements. The counter-movement is backlash. In the modern era, perhaps the best-known example is the anti-feminism of Phyllis Schlafly and her Eagle Forum. Susan Faludi's 1991 book Backlash insightfully described a good deal of the cultural politics of the time in terms of backlash against feminism.

Likewise, Professor Michael Klarman's discussion of the pre-Obergefell politics of same-sex marriage (SSM) has backlash in the title. Among other things, Klarman's From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage credits backlash against the fear of SSM with playing an important role in producing the two-term presidency of George W. Bush. The claim is that a ballot measure adopted in response to the Goodridge decision by the high court of Massachusetts, from which Bush's 2004 opponent, John Kerry, hailed, was arguably decisive in Ohio and thus the electoral college.

I'm not now interested in retroactively armchair quarterbacking the 2004 election. Instead, I want to concede Klarman's core point that there was substantial reaction against judicial rulings for marriage equality. However, I want to suggest that "backlash" is perhaps a too-encompassing term. Much of the story of the political fight over SSM involves less backlash than what we might call frontlash: politicians and their constituents anticipating that a movement they oppose will gain traction and taking measures to nip it in the bud.

I won't use the term frontlash, however, because it turns out that someone else has already used that term to mean something quite different. Anyway, my colleague Sid Tarrow and I already coined a term for this phenomenon. In a 2014 article Professor Tarrow and I described the reactionary movement against SSM that arose before the social justice movement for marriage equality had even gained much political traction as an "anticipatory countermovement." Beyond the particular observations we made about SSM, our intervention aimed to complicate the story that scholars of social movements usually tell, in which those seeking change initiate a cycle of contention, with those seeking to preserve the status quo acting only in reaction. In some circumstances, Tarrow and I observed, the status-quo preservers act first, albeit in response to what they expect to see coming down the pike.

We now come to sidelash. Backlash means reaction against gains made by a social/political movement that seeks change. Anticipatory countermobilization (another term Tarrow and I invented and deployed) means reaction against anticipated efforts by a social/political movement that seeks change. Sidelash means reaction against gains made in another jurisdiction by a social/political movement that seeks change.

I'm not just making up terms for their own sake. The critical point I want to make is that we see interesting overlap between sidelash and anticipatory countermobilization. For example, when states that did not face an imminent possibility of legalizing same-sex marriage adopted state constitutional amendments banning SSM in response to the Massachusetts Supreme Judicial Court's finding of a state constitutional right to SSM, they were engaged in sidelash with respect to Massachusetts but anticipatory countermobilization with respect to their own jurisdictions. That's arguably a feature of being part of a single federalist system, as opposed to being fully separate sovereigns.

Consider an example. In New York State, bestiality is a misdemeanor. Suppose that legal bestiality in some distant foreign country were to garner a great deal of publicity. Legislators and citizens in New York might take note and worry that the forces that gave rise to widespread bestiality in the distant foreign country could eventually gain strength in New York. If they act to increase penalties for bestiality in New York, they are engaged in sidelash. True, they are also in some sense engaged in anticipatory countermobilization; they probably wouldn't bother to change New York's law if they thought there was no chance of the movement for bestiality spreading to New York, but I am hypothesizing that they act very far in advance of the need for action.

Put differently, the difference between sidelash and anticipatory countermobilization is one of timing and degree. Seeing the forces of change on the horizon and acting to nip them in the bud is anticipatory countermobilization. Seeing something happening somewhere far away and taking a stance against it by seeking to change your own laws, even though there's no real danger on the horizon, is symbolic politics or sidelash.

Again, I don't want to be pedantic about the distinction. My core point is that in U.S. states we see a lot more sidelash against movements in sister states than we see against movements in foreign countries. Presumably that's because when actors in foreign countries do things or pass laws that would make people uncomfortable if emulated by Oklahoma or Arkansas, legislators in those states have less reason to fear that the phenomenon in question will spread than if the same developments were to occur in California or Vermont.

Why? Two reasons. First, for all of our regional differences, there are common cultural roots across the U.S. Bestiality tourism was a thing in Denmark before a 2015 law. My guess is that legislators in Oklahoma City and Little Rock paid little attention to it. They probably would have paid more attention if it happened in a sister state.

Second, laws passed in Copenhagen don't govern in Oklahoma or Arkansas. Neither do laws passed in Sacramento or Montpelier, but state legislation is often a model for federal legislation. To be sure, passing a state law will not protect a state against an unwanted federal law, given the Constitution's Supremacy Clause, but state legislation against some development can be part of the political struggle to hold the movement at issue at bay.

By giving the example of bestiality, I mean to show that the dynamics of backlash, sidelash, and anticipatory countermobilization have no necessary political valence. If you think that the change movement in question is harmful, then you will think justice is on the side of preserving the status quo. And--as Professor Tarrow and I were at pains to point out in the 2014 article, the very idea of identifying a movement and a counter-movement depends on what can be arbitrary assumptions and starting points. Is the gun rights movement a counter-movement to the gun control movement or vice-versa? It's hard to see what purpose would be served in trying to resolve such a question.

So everything I've been discussing is a matter of degree. But still, I think the points can be helpful in sorting out what's going on when states pass what seem like unnecessary laws.

And that brings me back to the anti-CRT state laws. I don't want to say that the underlying threat was entirely imaginary. There probably are some faculty at public universities in Oklahoma who are favorably disposed towards CRT, although I share Prof Buchanan's view that it would be difficult to find someone who adheres to the cartoonish view of CRT deployed in the state's new law. Still, it's possible to understand the red-state anti-CRT laws as simple backlash.

It's hard to understand those laws as anticipatory counter-mobilization, except in a kind of self-deluded way, much in the way we might understand the right's response to the imagined "War on Christmas." The base is whipped into a frenzy about a virtually non-existent threat that they nonetheless believe is real, so their elected representatives take action--here in the form of state anti-CRT legislation to preemptively address a threat that would never materialize.

Federalism might be thought to complicate the picture but it really doesn't. It's somewhat more likely that legislative or executive action could emerge at the national level than at the state or local level in red states, but such action would either be constitutionally valid (under, say, the Spending power), in which case state legislation against it would be futile because pre-empted via the supremacy of federal law, or invalid (perhaps because deemed executive overreach), in which case state legislative action would be unnecessary. Thus, in the end, the risk of federal action makes the state anti-CRT laws no more sensible as anticipatory counter-mobilization against anticipated federal action (which it either cannot or need not block) than against anticipated state or local action (which mostly isn't a threat).

Because the red-state anti-CRT laws are not easy to understand as either backlash or as anticipatory counter-mobilization, I think the best way to understand them is as sidelash.